Should a parent’s adultery be per se relevant to child custody?

Posted Tuesday, January 31st, 2012 by Gregory Forman
Filed under Child Custody, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

I’m no social conservative but, contrary to many South Carolina family law attorneys and judges, I believe that a parent’s adultery is almost automatically relevant on the issue of child custody when such adultery demonstrates a spouse’s failure to honor his or her commitment of sexual fidelity to a spouse.

South Carolina case law generally does not consider evidence of a parent’s adultery to be automatically relevant in determining child custody.  “A parent’s morality, while a proper factor for consideration, is limited in its force to what relevancy it has, either directly or indirectly, to the welfare of the child.” Stroman v. Williams, 291 S.C. 376, 353 S.E.2d 704, 705 (Ct.App. 1987).   As noted by the Honorable Alex Sanders in his concurrence in that case “[w]e are not in the business of gratuitously judging the private lives of other people.” Id. at 707.

South Carolina family law attorneys and judges take this to mean that adultery, without more, is not to be considered as a factor in deciding child custody.  In Davenport v. Davenport, 265 S.C. 524, 220 S.E.2d 228, 230 (1975), for example, mother had an extramarital affair and her boyfriend spent five nights in her condominium with the children present, yet the court still found it proper to award her custody.  In reaching this conclusion the Davenport court noted, “[c]ustody of a child is not granted a party as a reward or withheld as a punishment.”   Last year, in Moeller v. Moeller, 394 S.C. 365, 714 S.E.2d 898 (Ct. App. 2011), the Court of Appeals reversed a custody award to father and awarded custody to mother despite her adultery.

Yet unlike other types of sexual behavior that the South Carolina family courts often disapprove of, there’s a good argument that adultery–or at least adultery that pre-dates the parties’ separation or occurs shortly thereafter–is per se relevant on the issue of custody.  Its automatic relevance stems from the fact that adultery (possibly) demonstrates a failure or refusal to honor important commitments to one’s loved ones.  Sexual fidelity is, after all, a cornerstone of most spouses’ understanding of marriage and dishonoring this commitment is deeply hurtful for most spouses.

Again not considering adultery that greatly post-dates the separation, I believe adultery teaches us some important things about the adulterer.  First, it shows that person is willing to break important commitments to someone he or she vowed to love “until death do us part.”  Further it demonstrates that person was willing to dishonor that commitment understanding this would cause great pain to a loved one.  If a person is willing to treat his or her spouse this way, why expect that he or she won’t treat his or her child this way?

When I first began practicing family law almost twenty years ago, many family law practitioners, and a few family court judges, didn’t see domestic abuse as necessarily relevant to child custody.  “Just because a man beats his wife doesn’t mean he’ll beat his children,” was the explanation.  No one professes that anymore.   I think a similar analysis about keeping commitments–a spouse who dishonors a commitment to the other spouse about sexual fidelity is likely to dishonor difficult or inconvenient commitments to his or her children–is arguably accurate.  Moreover, just as witnessing a parent engage in domestic abuse teaches children that such abuse is acceptable, witnessing a parent dishonoring a commitment teaches children this behavior is acceptable.  Given these concerns any adultery that pre-dates or causes the separation should be considered relevant on the issue of child custody.

6 thoughts on Should a parent’s adultery be per se relevant to child custody?

  1. MJ Goodwin says:

    Well said. Too bad we’re not in charge.

  2. laura says:

    A parent’s ability to make decisions that affect his family, as we’ll as his/her inability to put their needs in front of his/her own is the issue and directly affects their credibility in court and in the eyes of the child as they grow and look to the parent for guidance and as a model human being.

  3. Katie Cauthen says:

    If parents had sex with children, this argument would make more sense when compared to the “if you beat your wife…” argument. There is a fundamental difference between the two relationships that I would suggest makes that argument weak. As far as the modeling behavior argument, that honestly can be said about us all when we see our two year old use a word we wish we had kept in our proverbial pocket. If I were on the opposite side, I would suggest that the long-term and overall picture of parenting speaks more to the issue than whether the parents have some flaw in their relationship that festered and led to the eventual breakdown of the marriage, whether through one broken vow or another.

    1. Gigi says:

      I think Mr. Forman’s argument is very relevant. In my case, my husband started an adulterous relationship months prior to asking for a separation. He CHOSE HER over his children when he walked out the door the morning I was crying uncontrollably. He gave little concern toward his children that their mother was not in a healthy state of mind or that our children would possibly see me that way and get upset. I think that speaks volumes in terms of whether he has the maturity and responsibility to make choices that would positively affect his children. He also suggested, shortly after I discovered the affair, that he wanted to introduce our daughters to his mistress. Again, pointing to only his own needs or wants and a complete disregard for their emotional well-being. The choices we make define who we are, and our character (or lack thereof) should be a strong indicator of whether we are fit to parent.

  4. I believe that pre-separation adultery should be a bar to child custody and almost any other relief. I also believe that criminal adultery should be prosecuted. A strict enforcement of the prohibitions against adultery would not stop adultery, but it would stop people from flaunting it, which would make for more stable families and a little better society.

    I lost the custody case of Peay v. Peay, 260 S.C. 108, 194 S.E.2d 292 (1973), by a 3-2 decision in 1973, primarily because of my client’s adultery. I was not the trial lawyer. Mrs. Peay would not have lost two years later when Davenport was decided and several new justices were on the court. While still a little bitter about the loss 38 years later, I think the better public policy is served by strict enforcement.

    Supposedly when my grandfather took the oral bar exam in 1885 the chief justice asked, “Mr. McDow, what is the difference in fornication and adultery?” My grandfather reputedly replied, “Absolutely none. I have tried them both.” Of course I do not believe the story.

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